What to expect in a personal injury mediation. Hi I’m attorney Jake Kimball and I wanted to talk to you today about what you can expect in mediation in your personal injury case. If you are in a case in Colorado you can expect that the judge will order that your case be submitted to mediation. Mediation is an opportunity where you have a neutral person called a mediator, usually it’s a retired judge or an attorney who has a lot of experience in your area, and that neutral mediator they are tasked with trying to get the parties to compromise.
Typically mediation will take place at the mediator’s office so you will go there and you’ll be put in separate rooms. We don’t want any scenes like you have at the beginning of wedding crashers where people are in each other’s face getting mad and yelling at each other. Instead you put the parties in separate rooms, that helps remove emotion from it, that helps people thing rationally about their case rather than getting mad and making emotional decisions.
Once you’ve been placed in your room you’ll be in a room with your own attorney and then the opposing attorney if it’s a personal injury then the at fault driver will have an attorney hired by an insurance company that will be in another room and typically they’ll have the adjuster there by phone or in person depending on the case. It’s rare that you see the actual at fault driver present at the mediation and that’s because they typically don’t need to chip in any money, it’s all insurance money so they don’t get to choose how it’s spent, that’s the insurance company and their lawyer’s job to decide how that’s spent on your case.
You’ll be put in separate rooms and the mediator will go back and forth between the rooms to talk to you about opportunities to settle the case. The way they do that is they’ll typically start with the plaintiff, that’s the person who brought the lawsuit who is usually the injury victim. They’ll start with the plaintiff and talk to the plaintiff, give them a chance to talk about their injuries and their treatment and how they’re doing and that kind of thing. Different mediators have different styles, sometimes you’ll just talk to the lawyer, sometimes the lawyer will do all the talking, sometimes the mediator wants to talk to the person individually.
One of the important things about talking to the individual is that who you are really matters in your case. Your personality, your character, your credibility, whether a jury’s gonna believe you or not is very important in your case and so the mediator’s gonna want to get a feel for you, how are you gonna appear in front of a jury. You’ll tell your story to the mediator and the mediator will ask questions, what about this treatment and what do you expect in the future and how are you doing your day to day that kind of thing so that he or she gets a better idea of your claim.
Now your attorney will typically have prior to the mediation will have submitted a confidential settlement statement to the mediator outlining your position and providing copies of records and bills and that sort of thing, which is very important but also the mediator wants the human element to understand the human element too so that’s why you’ll be asked questions about your condition and your treatment. You shouldn’t feel on the spot too much because everything that’s said in mediation is confidential so there’s nothing in the mediation that can be raised with the court unless you outright refused to participate in the mediation. The mediator won’t be called to testify in court about what you said our what you were willing to settle the case for, any of that stuff. You should feel somewhat at ease and I understand it’s not a fun process at all so I don’t expect you to not be bothered by it, but nothing’s on the record, nothing is permanent, if you end up not settling then you’re not stuck to that settlement position that you took in mediation.
Once a mediator gets a feel for you and your case then you’ll make an opening offer if you’re the plaintiff. That’s gonna be a dollar amount because that’s how these cases work. You’re typically not gonna be asking for letters of apology or non dollar amount, I mean you can talk to your own attorney about that but that’s usually a non starter with insurance companies. They’re only interested in a certain dollar amount in exchange for agreeing to drop your lawsuit against their insured. You’re gonna make a dollar amount offer and then the mediator will then take that dollar amount into the other room and talk to them about their case.
One important thing to remember about mediation is that the mediator’s job is to facilitate a compromise. The compromise is the settlement, if neither party recognizes that they have any weakness they’re never gonna settle, that’s not how people work. You’re gonna have to listen to the mediator tell you the weaknesses of your case and a lot of times that offends people and I understand why but the mediator’s job is to tell you, hey you may have a problem here or you may be overreaching in what you’re trying to get.
Then at the same token the mediator’s gonna go ahead and meet with the insurance company’s lawyer and talk to them about the weaknesses in their case and they’re gonna talk to, “Hey, I met Mrs. So-And-So, she’s a great person. A jury’s gonna love her, you guys really need to settle this case,” or “I see in the medical records that she was always very on time with her treatment and she worked really hard to get better and it looks like all the radiology reports support her injury claims,” and that’s to get their number to go up because if they don’t come up on their numbers and you don’t come down you’re never gonna get a settlement, it’s just not gonna happen.
The mediator’s gonna go back and forth and one thing about mediation it can be pretty boring when the mediator’s in the other room and that’s because the mediator’s gonna need to take 30 to 60 minutes to talk to them about their case before he or she comes back in and explains their position to you and asks you to come down a little bit and they’re gonna go back in with the insurance company ask them to come up a little bit and go back and forth. At some point, if you guys can reach an agreement, then it’s gonna be put into writing and you will sign it there at the mediation and that’s gonna be a binding contract to settle this case.
Later your lawyers will put together a longer document that’s got all sorts of fancy lawyerly terms in it, but basically is an extrapolation from this agreement you come up with at the mediation. The agreement that you sign at mediation is fully enforceable in a court of law so it’s important that you agree with the mediation agreement before you sign it. Once you sign it then your case is settled and it’s gonna have some provision in there about how long before they pay you money and the attorney’s gonna talk to you about, hey you have to pay all these other people off, gotta pay off the liens, and explain to you where all the money’s going but your case is basically done then if you settle.
If you don’t settle that doesn’t mean that your case is over or that your case cannot settle, there’s always opportunities to settle down the line. I’ve seen cases where the mediator continues to work with the lawyers and I’ve seen cases where the lawyers just work it out between themselves without a mediator, it really just depends on their professional judgment on what’s the best way to get this case resolved. Cases can even settle during trail, usually that’s because some bombshell came out for one side or the other, but it can always settle at trail and so you shouldn’t give up hope if you really wanted the case to settle at mediation, you don’t need to give up hope, it’s still possible it will settle and you can resolve the case that way.
Like I said nothing that comes out at mediation’s admissible unless you come up with an actual agreement and then that can be shown at the court to show that it was done. That’s mediation in a nutshell in a personal injury case, if you have questions about mediation or if you’ve got one coming up and you got questions about whether you need a lawyer or not please give us a call at Springs Law Group, we do a free consultation. Our phone number’s 719-421-7141, good luck.